INTER-AMERICAN COURT OF HUMAN RIGHTS

CASE OF GARCÍA LUCERO ET AL. v. CHILE

JUDGMENT OF AUGUST 28, 2013

(Preliminary objection, merits and reparations)

In the case of García Lucero et al.,

the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), composed of the following judges:[(]

Diego García-Sayán, President

Manuel E. Ventura Robles, Vice President

Alberto Pérez Pérez, Judge

Roberto F. Caldas, Judge

Humberto Antonio Sierra Porto, Judge, and

Eduardo Ferrer Mac-Gregor Poisot, Judge;

also present,

Pablo Saavedra Alessandri, Secretary, and

Emilia Segares Rodríguez, Deputy Secretary,

pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and Articles 31, 32, 42, 65 and 67 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), delivers this Judgment structured as follows:

TABLE OF CONTENTS

I INTRODUCTION OF THE CASE AND SUBJECT OF THE DISPUTE 4

II PROCEEDINGS BEFORE THE COURT 6

III COMPETENCE 8

IV PRELIMINARY OBJECTION: Lack of temporal and material competence 8

A. Arguments of the parties and of the Commission 8

B. Considerations of the Court 10

B.1.) Regarding the lack of material competence 10

B.2.) Regarding the lack of temporal competence 11

V EVIDENCE 15

A. Documentary, testimonial and expert evidence 16

B. Admission of the documentary evidence 16

C. Admission of the statements of the presumed victims, and the testimonial and expert evidence 17

VI FACTS 18

A. Background: facts prior to the acceptance of the contentious jurisdiction of the Court 18

A.1) Context 18

A.2.) SITUATION OF LEOPOLDO GARCÍA LUCERO AND HIS FAMILY 19

A.2.1) Regarding Mr. García Lucero and his family 19

A.2.2) Detention, torture and exile of Leopoldo García Lucero (from September 16, 1973, to June 12, 1975) 20

A.2.3) Decree Law No. 2,191 or Amnesty Law 21

A.2.4) National Truth and Reconciliation Commission (Rettig Commission) 21

B. Facts subsequent to the acceptance of jurisdiction 22

B.1. System of reparations adopted by the State 22

B.1.1) Law No. 19,123 - National Compensation and Reconciliation Board 22

B.1.2) Laws that regulate the pension and special bonus payment for those “dismissed for political reasons” 23

B.1.3) Laws relating to Chileans who were exiled 23

B.1.4) Human Rights program “No hay Mañana sin Ayer” 24

B.1.5) National Commission on Political Imprisonment and Torture (Valech Commission) 24

B.2) Measures of reparation granted to Mr. García Lucero by the State 25

B.2.1) Benefit as a Person Dismissed for Political Reasons under Law No. 19,234 26

B.2.2) Special compensatory bonus payment under Law No. 20,134 27

B.3.3) One-time bonus payment under Law No. 19,992 27

B.3 Current situation of Mr. García Lucero 27

C. Facts relating to the investigation opened on October 7, 2011 27

VII JUDICIAL GUARANTEES AND JUDICIAL PROTECTION IN RELATION TO THE GENERAL OBLIGATION TO ENSURE HUMAN RIGHTS AND THE OBLIGATION TO ADAPT DOMESTIC LEGISLATION AND THE OBLIGATIONS TO INVESTIGATE AND TO PUNISH ACTS OF TORTURE AND TO GUARANTEE THEIR INTEGRAL REPARATION 34

A. Introduction 34

B. Regarding the investigation of the facts 36

B.1) Arguments of the Commission and of the parties 36

B.2) Considerations of the Court 39

B.2.1) Regarding the immediate opening of an investigation ex officio 40

B.2.2) Regarding humane treatment 41

B.2.3) Regarding the measures taken in the investigation opened on October 7, 2011 42

B.2.4) Conclusion 44

C. Regarding the alleged legal obstacles to the investigation 45

C.1) Arguments of the Commission and of the parties 45

C.2) Considerations of the Court 46

C.2.1) Regarding Decree-Law No. 2,191 “granting amnesty” 47

C.2.2) Regarding article 15 of Law No. 19,992 48

C.2.3) Regarding articles 150 A and 150 B of the Criminal Code and 330 of the Code of Military Justice 49

D. Regarding the domestic proceedings to claim measures of reparation 50

D.1) Arguments of the Commission and of the parties 50

D.2) Considerations of the Court 55

D.2.1) The administrative reparation programs and the rights to judicial guarantees and protection 58

D.2.2) Access to remedies to claim measures of reparation in this case 62

D.2.2.1) Measures of compensation and rehabilitation as “rights” to be protected in this case 63

D.2.2.2) The possibilities of filing claims in relation to measures of reparation 65

D.2.2.3) Conclusion 68

VIII Freedom of Movement and Residence 68

A. Arguments of the Commission and of the parties 68

B. Considerations of the Court 68

IX REPARATIONS (Application of Article 63(1) of the American Convention) 69

A. Injured party 70

B. Obligation to investigate the facts and to identify and, as appropriate, punish those responsible 70

B.1) Arguments of the Commission and of the parties 70

B.2) Considerations of the Court 70

C. Measures of satisfaction and rehabilitation 71

C.1) Measure of satisfaction: publication and dissemination of the Judgment 71

C.1.1) Arguments of the Commission and of the parties 71

C.1.2) Considerations of the Court 72

C.2) Rehabilitation 72

C.2.1) Arguments of the Commission and of the parties 72

C.2.2) Considerations of the Court 72

D. Guarantees of non-repetition requested by the Commission and the representatives 73

D.1) Arguments of the Commission and of the parties 73

D.2) Considerations of the Court 73

E. Compensation 74

E.1) Pecuniary and non-pecuniary damage 74

E.1.1) Arguments of the Commission and of the parties 74

E.1.2) Considerations of the Court 74

F. Costs and expenses 76

G. Method of complying with the payments ordered 76

X OPERATIVE PARAGRAPHS 77

IINTRODUCTION OF THE CASE AND SUBJECT OF THE DISPUTE

1.  Submission of the case and synopsis. On September 20, 2011, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”), under the provisions of Articles 51 and 61 of the American Convention and Article 35 of the Court’s Rules of Procedure, submitted to the jurisdiction of the Court case No. 12,519 relating to García Lucero et al. against the Republic of Chile (hereinafter “the State” or “Chile”).

2.  According to the Commission, this case concerns the State’s alleged international responsibility for the failure to investigate and to make integral reparation for the various acts of torture suffered by Leopoldo Guillermo García Lucero (hereinafter also “Leopoldo García Lucero,” “Leopoldo García,” “Mr. García Lucero” or “the presumed victim”[1]) from the time of his arrest on September 16, 1973, until June 12, 1975, the date on which he left Chilean territory by a decision of the Ministry of the Interior. Since 1975, Mr. García Lucero has been living in the United Kingdom. According to the Commission, Chile “has failed to provide integral reparation for Mr. García Lucero, from an individualized perspective and taking into account that he lives in exile, as well as the permanent disability he suffers as a result of the torture he endured.” In addition, it indicated that the State had failed to comply with its obligation to investigate the said torture, ex officio, and had kept Decree-Law No. 2,191, which was incompatible with the American Convention, in force. The Commission added that, while the facts of the case related to the failure to investigate and make reparation for the acts of torture began before Chile had accepted the contentious jurisdiction of the Court on August 21, 1990, these omissions had continued after that acceptance, and continued to this day.

3.  The Commission asked the Court to declare the violation of the rights to judicial guarantees and protection and to humane treatment, in relation to the general obligation to guarantee human rights, as well as the obligation to adapt its domestic legislation (Articles 8(1), 25(1), 5(1), 1(1) and 2 of the American Convention) and the obligation to investigate established in Article 8 of the Inter-American Convention to Prevent and Punish Torture (hereinafter also “the Inter-American Convention against Torture”), to the detriment of Leopoldo García Lucero and his family; also, the violation of the right to integral, adequate and effective reparation under the general obligation to ensure rights in keeping with Article 5(1) of the American Convention, in conjunction with Article 1(1) of this treaty, to the detriment of Mr. García Lucero. In addition, it asked that the Court declare the violation of the right to humane treatment established in Article 5(1) of the Convention, in relation to the general obligation to ensure human rights established in Article 1(1) of this instrument, to the detriment of Elena Otilia García (hereinafter also “Elena García”), wife of Mr. García Lucero, of her daughters, María Elena Klug and Gloria Klug, and of Francisca Rocío García Illanes.[2] Furthermore, the Commission asked the Court to order the State to adopt specific measures of reparation.

4.  Proceedings before the Commission. The proceedings before the Commission were as follows:

a.  Petition. On May 20, 2002, the organization Seeking Reparation for Torture Survivors (hereinafter “REDRESS”) lodged the petition before the Commission.

b.  Admissibility Report. On October 12, 2005, the Commission adopted Admissibility Report No. 58/05.[3]

c.  Merits Report. On March 23, 2011, the Commission adopted Merits Report No. 23/11,[4] under Article 50 of the Convention (hereinafter also “the Merits Report” or “Report No. 23/11”), in which it reached a series of conclusions and made several recommendations to the State.

Conclusions. The Commission concluded that the State was responsible for violating:

-  Right to justice established in Article XVIII of the American Declaration; the rights to judicial guarantees, judicial protection and humane treatment, in conjunction with the general obligation to ensure human rights, as well as the obligation to adapt domestic legislation (Articles 8(1), 25(1), 5(1), 1(1) and 2 of the American Convention); and the obligation to investigate established in Article 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of [Mr.] García Lucero and his family.

-  The right to integral, adequate and effective reparation under the general obligation to ensure rights, in keeping with Article 5(1) of the American Convention, in conjunction with Article 1(1) of this instrument, to the detriment of [Mr.] García Lucero.

-  The right to humane treatment established in Article 5(1) of the American Convention, in relation to the general obligation to ensure human rights established in Article 1(1) of this instrument, to the detriment of the wife of [Mr.] García Lucero (Elena García) and their daughters (María Elena, Gloria and Francisca García).

Recommendations. Consequently, the Commission made a series of recommendations to the State:

1. Make integral and adequate reparation to Leopoldo García Lucero and his family for the human rights violations established in the report, mindful of his particular situation of being in exile and suffering a permanent disability.

2. Ensure that Leopoldo García Lucero and his family have access to the medical and psychiatric/psychological treatment necessary for assisting in their physical and mental recovery at a specialized care center of their choice, or the means to obtain such treatment.

3. Adopt the actions necessary to permanently void Decree Law No. 2191 – as it lacks effect in view of its incompatibility with the American Convention, as it may impede or obstruct the investigation and punishment of the persons responsible for gross human rights violations – so that it is not an obstacle to the investigation, prosecution, and punishment of the persons responsible for similar violations that occurred in Chile, and the victims’ rights to truth, justice, and reparation.

4. Proceed immediately to investigate the facts impartially, effectively, and within a reasonable time for the purpose of clarifying them completely, identifying the perpetrators, and imposing the appropriate sanctions. In carrying out this obligation, the Chilean State cannot invoke Decree Law No. 2191.

[…]

d.  Notification of the State. The State was notified of the Merits Report on April 20, 2011, and granted two months to provide information on compliance with the recommendations. On June 21, 2011, the State requested an extension to report on compliance with the recommendations. On July 8, 2011, the Commission granted a two-month extension, asking the State that it present reports on progress in this compliance on August 31 and September 8, 2011. The reports were presented and the Commission considered that their content did not reflect substantial progress in compliance with the recommendations.

e.  Submission to the Court. On September 20, 2011, the Commission considered that the State had not complied with the recommendations of the Merits Report and submitted the case to the Court. The Commission designated Commissioner José de Jesús Orozco Henríquez, and the Executive Secretary at the time, Santiago A. Canton, as its delegates before the Court, and Elizabeth Abi-Mershed, Assistant Executive Secretary, and Silvia Serrano Guzmán, María Claudia Pulido and Fanny Gómez Lugo, lawyers with the Executive Secretariat, as legal advisers.

IIPROCEEDINGS BEFORE THE COURT

5.  Notification of the State and the representatives. The State and the representatives were notified of the submission of the case on November 10, 2011.

6.  Brief with pleadings, motions and evidence. On January 10, 2012, Carla Ferstman, Lorna McGregor and Clara Sandoval, members of REDRESS, as representatives of the presumed victims (hereinafter “the representatives”), submitted to the Court their brief with pleadings, motions and evidence (hereinafter “pleadings and motions brief”), pursuant to Article 40 of the Court’s Rules of Procedure. In addition to agreeing, in general and in keeping with their own assessment, with the violations alleged by the Commission, in particular, they alleged the violation of the rights established in Articles 8(1) (Right to a Fair Trial), 25(1) (Judicial Protection), 5(1) (Humane Treatment), from the procedural perspective, in relation to Article 1(1) (Obligation to Respect Rights) of the American Convention, owing to the absence of access to justice and adequate reparation, and due to inhuman treatment as a result of the inaction of the State and of the system of justice, and Article 2 (Domestic Legal Effects) of the Convention owing to the failure to adapt its domestic law to the Convention, as well as the violation of Articles 6, 8 and 9 of the Inter-American Convention against Torture based on the lack of access to justice and of adequate reparation for the torture suffered by Mr. García Lucero. Consequently, they asked the Court to order various measures of reparation.